An evaluation of the NHS Resolution Mediation Evaluation

The publication of NHS Resolution’s evaluation of their mediation programme in February 2020 has shone a light into the opaque world of mediation and ADR.  The lamp of data has illuminated the success of ADR, in this instance mediation, in a way never done before.

In a market where the word “innovation” is worn out by repetition and run ragged by over-use NHS Resolution’s mediation programme, led by Julienne Vernon, is a rare example of genuine innovation.  Beginning on 5 December 2016, after a pilot, its panel of providers (CEDR, Costs ADR and Trust Mediation, to proceed alphabetically) have demonstrated an ability to resolve cases earlier and at far less cost freeing up the funds allocated to the NHS for clinicians to treat citizens.  This is no small achievement.

These are bold claims so we are right to enquire how they are demonstrated.  Through data.  This is set out in the publication “Mediation in healthcare claims – an evaluation” (at: https://resolution.nhs.uk/wp-content/uploads/2020/02/NHS-Resolution-Mediation-in-healthcare-claims-an-evaluation.pdf)

 The principal findings are:

  • Mediation is proven to be an effective forum for claims resolution by providing injured patients and their families with the opportunity to receive face-to-face explanations and apologies. Time can be spent listening and responding to the particular concerns of a patient and their family. The process provides a platform to claimants, patients and their families to articulate concerns that would not ordinarily be addressed in other forms of ADR.

 

  • 74% of cases mediated are settled on the day of mediation or within 28 days of the mediation date. Positive and compelling feedback has been received from participants of the process and there is a heightened awareness of the benefits of mediation for claims resolution and demand for its use by members and other stakeholders.

 

  • NHS Resolution through its strategy and use of mediation is driving cultural change.

 

  • Whilst mediation can be employed for all types of claims, the use of mediation should be tailored for greater effect. The analysis of the data revealed that a significant number of mediations took place after legal proceedings had been commenced and a directions timetable set by the court. Costs invariably become more expensive after proceedings are commenced. Mediation as an intervention can be more effective if carried out at an earlier stage in the lifecycle of the claim.

For the purposes of the evaluation, 606 cases were reviewed where there was a completed mediation from 5 December 2016 to 31 March 2019. There were 22 costs mediations in this cohort, which have been excluded from the main analysis.  The focus is on increasing the number of mediations from the Public Accounts Committee and others.  With ca 10,000-11,000 claims against NHS Trust each year there is plenty of scope for increasing the numbers.  One requirement is to further change the culture of the legal profession (both Defendant and Claimant firms) from antipathy toward an embrace of ADR and in particular mediation as the default approach to any clinical negligence claim.  One of the certainties for the next stage of the programme is that there will be many more cases mediated.

DisputesEfiling.com (DEF) was delighted to support the NHS Resolution Mediation Programme under a one year pilot (18.12.18-17.12.19) of our ADR efiling solution to enable the quicker and safer management of mediation cases.  Both Claimant lawyers and Defendant lawyers praised our simple functionality and efficient operation.

A number of ADR schemes are experiencing a sharp increase in the number of instructions from January 2020 onwards.  This should surprise no-one following the Court of Appeal decision in Lomax last August: (https://www.bailii.org/ew/cases/EWCA/Civ/2019/1467.html) and three Civil Justice Council reports in the last 18 months each of which has put more ADR at the heart of their recommendations.

On 12 February 2020 NHS Resolution began the process of re-procuring the panel of providers of clinical negligence and costs mediation providers. In a further significant shift toward modernising ADR practice a requirement of that tender is for providers to have a GDPR compliant secure environment to enable the efficient management of mediations.

Data is at the heart of this Evaluation and it shows how much can be achieved by empirical rather than the anecdotal approach to civil justice reform.  Moving the management of mediations online presents another opportunity to extract more data, more quickly to better inform the further evolution of this culture-changing and ground breaking programme.

Significantly the report points out that it is at the pre-action stage where mediation is at its most successful with a 71.1% success rate, than at any other stage in the life cycle of the claim.

Another key finding is that mediation works best when a relevant healthcare professional attends the mediation.

DisputesEfiling.com (DEF) was delighted to support the NHS Resolution Mediation Programme under a one year pilot (18.12.18-17.12.19) of our ADR efiling solution to enable the quicker and safer management of mediation cases.  Both Claimant lawyers and Defendant lawyers praised our simple functionality and efficient operation.

The overwhelming conclusion from the report and our own experience of supporting the Programme last year is that NHS Resolution are without question driving cultural change amongst healthcare professionals, Claimants and lawyers on both sides of these difficult cases.  We wish the Programme every success as it continues to transform this sector.